Cops who asked “Occupy” protesters to smoke pot so police could see how they behaved should have known that what they were doing was unconstitutional, a federal judge has ruled.

U.S. District Judge John Tunheim said a lawsuit brought by two protesters could continue against three named officers and two identified only as John Doe 1 and John Doe 2.

In his ruling Monday, the judge said the part of the suit that involved four other plaintiffs against a host of other law officers and their departments should be dismissed because they hadn’t stated a claim that was specific enough.

The judge left the door open for action on those claims, though, saying the dismissed plaintiffs could add more specific allegations and file an amended complaint.

A lawyer for the plaintiffs said they planned to do just that. “We’re really happy with it,” Nathan Hansen, a North St. Paul attorney, said of Tunheim’s ruling. “It means the case is going to move forward.”

Attorneys representing the three remaining defendants, who are with the Hutchinson police and the sheriff’s offices in Olmsted and Nobles counties, did not immediately return a call for comment.

The lawsuit stems from an event during the 2012 Occupy Minneapolis protest at Peavey Plaza in Minneapolis. The plaintiffs allege that police picked them out of the crowd, took them to a warehouse near Minneapolis-St. Paul International Airport and had them smoke marijuana so the officers could see how they acted.

It was part of a Drug Recognition Evaluators, or DRE, training exercise managed by the Minnesota State Patrol. The program was intended to train officers to spot signs of drug use, primarily in motorists. The test subjects were to be volunteers.

The plaintiffs didn’t buy that explanation. They claimed in their suit that the lawmen who “designed and ran the program wished to target members of Occupy Minneapolis, members of the homeless population, and other vulnerable members of the population and see what quantity of drugs their bodies could tolerate.”

Tunheim also expressed skepticism of the state’s explanation, at least based on the court record so far. He wrote that “the court does not see and defendants have made no argument as to how providing citizens with an illicit drug furthers the state’s interest in preparing its law enforcement officers to recognize people under the influence of drugs.”

Once the officers were done with their evaluations, the protesters were returned to Peavey Plaza.

After the allegations began airing, Hennepin County Attorney Michael Freeman’s office investigated, as did the Minnesota Bureau of Criminal Apprehension. Although Freeman’s office recommended changes in the program, it said there was no solid evidence that officers had committed crimes.

As the inquiries were going on, Minnesota Public Safety Commissioner Mona Dohman suspended the program. The training was resumed after the program was revamped.

Six protesters sued in February 2013, accusing 26 defendants of violating their rights under the First and Fourteenth amendments. Tunheim said that at least so far, only two of the plaintiffs — Michael Bounds and Forest Olivier — had presented allegations specific enough to support a lawsuit.

The officers’ actions violated the protesters’ right to free speech, the judge wrote.

“The court concludes that a reasonable officer would have known that the law of the First Amendment clearly established that the facts as alleged by plaintiffs — targeting protesters as candidates for the DRE program and intimating that failure to participate would result in arrest — amounts to a violation of free speech rights,” Tunheim wrote.

The judge noted that a precedent case held that peaceful protest is protected speech, “and it is an easy corollary that targeting protesters with a request coupled with an (even subtle) threat of arrest is an unconstitutional retaliation for such speech.”

Aside from the First Amendment claims, Tunheim also said the allegations constitute violations of Bounds’ and Olivier’s rights under the Fourteenth Amendment, which bars a state from depriving any person of “life, liberty, or property, without due process of law.”

Hansen, the plaintiffs’ attorney, said the officers gave the protesters “large amounts of powerful marijuana.” One claimed he was told to smoke “eight or nine huge bowls of pot.”

“There were no medical personnel present,” the lawyer said. “There was no questioning about their medical histories. They ran these tests on them, and gave some of them drugs to go, a couple of grams, and dropped them off in downtown Minneapolis.”

The officers who remain named defendants in the suit are Nicholas Jacobson of the Olmsted County Sheriff’s Office, Nobles County Deputy Kenneth Willers, and his brother, Karl Willers, a Hutchinson police officer.

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